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United States v. Persico

decided: July 23, 1965.

UNITED STATES OF AMERICA, APPELLEE,
v.
CARMINE PERSICO, JR., SALVATORE ALBANESE, HUGH MCINTOSH, RALPH SPERO AND GEORGE LA FANTE, DEFENDANTS-APPELLANTS



Smith and Marshall, Circuit Judges, and Metzner, District Judge.*fn* Marshall, Circuit Judge (concurring).

Author: Metzner

METZNER, District Judge:

Defendants appeal from judgments of conviction after a trial before Rosling, J., and a jury. Defendants Persico, Albanese, McIntosh and Spero were tried and convicted on a substantive count of robbery of merchandise moving in interstate commerce (18 U.S.C. ยง 1951),*fn1 and a conspiracy count. Defendant La Fante was tried and convicted solely on the conspiracy count. Because of errors in the charge, we reverse.

The defendants have been tried four times on an indictment filed on April 28, 1960.*fn2 The crime was committed on July 28, 1959. The first trial lasted twelve days, but the jury failed to agree on a verdict. The second trial lasted nine days and resulted in convictions of all defendants on both counts except La Fante, who was acquitted on the substantive count. The convictions were reversed on appeal. United States v. Persico, 305 F.2d 534 (2d Cir. 1962). The third trial ended in a mistrial after the eighth day as to defendants Persico, Albanese and Spero. The trial was concluded three days later as to the defendants McIntosh and La Fante, but the jury failed to agree on a verdict. The fourth trial lasted about sixteen weeks.

On the appeal from the convictions after the second trial, this court stated (305 F.2d at 536-537):

"The Government's case rested entirely upon the uncorroborated testimony, inconsistent with his earlier testimony in some respects, of an accomplice and co-conspirator who had the strongest possible reasons to become a Government witness. We must therefore scrutinize any claimed error with extreme care since there is grave possibility of prejudice to the defendants in a case such as this by error which might in other circumstances be deemed relatively minor."

It further stated at page 540:

"While the judge has an active role to play in the search for truth through the trial process, he must take great pains to avoid giving the jury an impression that he is partisan. United States v. DeSisto, 289 F.2d 833 (2 Cir., 1961)."

Both of these observations are apt in reviewing the 9,595 pages of transcript on this fourth trial.

I

The charge to the jury on this trial took thirteen hours over a two-day period, including an hour and a half for lunch each day. The third day was devoted to disposing of exceptions to the charge in the absence of the jury. This session lasted fourteen hours, including recesses for lunch and dinner. On the fourth day the court gave a supplemental charge which covered a four-hour period, inclusive of a luncheon recess.

The purpose of a charge is adequately, yet succinctly, to instruct the jury as to its function, which is the independent determination of the facts, and the application of the law, as charged by the court, to the facts, as found by the jury.*fn3 Repetitious and unnecessarily long charges are confusing to a jury and prevent it from properly exercising its function. Several hundred pages of the charge were devoted to references to portions of the testimony, either by way of summary or direct quotation, for the purpose of marshaling the evidence or explaining points of law stated by the court. The result was that the jury must necessarily have been confused, and unable to exercise its independent recollection of all the testimony which is supposed to govern its deliberations. However, the reversal of the judgments in this case does not rest solely on this ground in view of the specific errors in the charge, requiring a new trial.

II

The Government's case was based primarily on the testimony of the accomplice Vaccaro, who had pleaded guilty to the indictment after the first trial. He had a long criminal record and was in state prison awaiting sentence on another crime when he ...


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